“Some law-enforcement officials and journalists believe that stories in 2000 by (Joseph) Farah’s WorldNetDaily on then-presidential candidate Al Gore’s political dealings in Tennessee, which were picked up by smaller papers in the state, played a role in Gore’s loss,” write Jeff Gerth, a former reporter for the Times and Don Van Natta Jr., a current reporter for the paper. “The math was certainly clear: If Gore had won Tennessee’s 11 electoral votes, he would have been elected president.”

WND is asking the U.S. Supreme Court to overturn a Tennessee ruling that could banish – nationwide – shield law protections like those that protected Washington Post reporters Bob Woodward and Carl Bernstein in their pursuit of the Watergate scandal.

Specifically, WND is challenging a Tennessee ruling in the civil case that would require reporters to identify their confidential sources.

“If this is law, all President Nixon needed to do in order to retain his presidency was sue Woodward and Bernstein for defamation, force them into this Hobson’s Choice and, by presumption, establish that the information attributed to the confidential source was false,” said attorney Larry Parrish, who is handling the appeal of a Tennessee lawsuit brought by a top Gore fundraiser.

“The alternative for Woodward and Bernstein would have been to disclose the name of Deep Throat and suffer a breach of confidence judgment in favor of Deep Throat,” he said.

A Tennessee appeals court banned WND from defending itself based on the truth of a series of articles during the 2000 presidential election, because they included information from a confidential source to which WND didn’t have access.

Sam Cole, a lawyer for free-lance reporters Charles C. Thompson II and Tony Hays, who wrote the articles, suggested the Tennessee state law in question could be interpreted as “impeding” a free press and violating the U.S. Constitution ban on such limits.

But the Tennessee Supreme Court refused even to hear the case and left standing a lower court decision that requires reporters to reveal their confidential news source or abdicate their right to use the truth of the statements as a defense in the lawsuit. WND’s situation is complicated by the same requirement because the news agency does not even know the identity of confidential sources used by the reporters.

“I know many of my colleagues in the press care about the First Amendment,” said Joseph Farah, editor and founder of WND. “Anyone who cares about the First Amendment needs to start caring about this monumental case. This has the potential to be bigger than New York Times v. Sullivan. Yet little media interest has been stirred.”

The reports included information about a Savannah, Tenn., auto dealer, friend of Gore and Democrat activist Clark Jones, who brought the action and has been determined by the courts to be a public figure.

Jones, who raised more than $100,000 for Gore’s presidential campaign, alleges personal embarrassment and humiliation from the articles, which said he reportedly intervened in a Tennessee Bureau of Investigation probe into narcotics trafficking in Hardin County in 1999. The car dealer also alleges the articles implicated him in the 1980 arson of his own business, the Jones Motor Company, and also pegged him as a suspected drug dealer.

Parrish said the decision, if not changed, would be disastrous for the news industry.

“Because of the Internet invading the news dissemination business, it’s to a point that the rules for the entire nation will be determined by the state with the most restrictive rules of law,” Parrish said. Almost every newspaper, broadcast station or news service posts information on websites, and nothing can prevent those postings from being downloaded in any location, in this case Tennessee.

Since Tennessee law as it is being applied gives reporters the same opportunity for withholding a confidential source in a civil defamation case as they have before a grand jury – none, he said, that very well could become the standard nationwide.

The biggest difference is that in a typical grand jury setting, the investigation including its testimony is by law secret, while in civil defamation cases, testimony is wide open.

“Investigative reporting has been able to exist and continues with the requirement that names be divulged in a grand jury. You transport that same requirement into a civil defamation case against reporters and you will shut down the information from confidential sources,” Parrish said.

“There will be no such thing as a confidential source,” he said. “If this is the law of the land, no reporter can ever give any source of information an assurance of confidentiality. It will dry up all the information that comes to reporters only on an assurance of confidentiality.

“[Previously] when a reporter took information from a confidential source, if they’re thorough and careful, they need to say, ‘This is subject to me having to divulge your name in a grand jury behind closed doors … under confidential requirements,'” Parrish said. “Now they will have to say, ‘I receive your information in confidence unless I get sued.’ Who’s going to give information? It’s just not going to happen.”

The limitation on reporters and news distributors also bans them from using the truth of an article as a defense in any defamation case, because they cannot express their belief or confidence in the accuracy of any report without involving the source, he said.

“Not asserting a truth defense in a defamation case is real close to admitting liability,” Parrish said. “At that point it’s very close to an admission that the information is not true, even if it is.”

WND earlier had asked to be treated as other news organizations, highlighting the fact that Tennessee Attorney General Robert E. Cooper, Jr., has joined an amicus brief in a California case that involves reporting by the San Francisco Chronicle and two reporters, who quoted confidential sources in their stories about a grand jury investigation of allegations of steroid use by Major League Baseball players.

In contradiction to its position in the WND lawsuit, Tennessee argued in that case that the California reporters have the right to use confidential sources.

WND is arguing that Tennessee’s conclusion in the California situation is correct, but not in the WND lawsuit.

“In Tennessee, the one and only thing a public figure must do to force a newsgatherer to reveal confidential sources is file a lawsuit for defamation against the newsgatherer,” the appeal said. “The newsgatherer, then, is in the trick bag – no further questions asked. Either the newsgatherer must suffer an enhanced chance of an adverse verdict for damages for defamation (because all allusion to the truth of the subject information has been snatched away by the trial court), or commit the intentional tort of breach of the confidence the source vested in the newsgatherer not to reveal the source’s identity.

“Furthermore, since Jones concedes that [the] Reporters were neither employees nor otherwise agents of WND … it will become the law of Tennessee [and the land] that one who disseminates news stories by posting them on an Internet website, vicariously must suffer the same penalty as the newsgatherer, if the disseminator disseminates a news story with attribution to a confidential source who the newsgatherer (not the disseminator) refuses to disclose. And, this is so even though the disseminator does not have the identity of the confidential source to disclose,” the appeal said.

“Thus, unless there is protection, under the First Amendment, that is universally applicable in the United States, investigative reporting by every newsgatherer in the United States can be controlled by any state acting unilaterally and, even, in complete discord with every other state. The public policy implications here are phenomenal,” the appeal said.

“It would be hard to dream up a more onerous and more pervasive infringement of the First Amendment press freedom,” the appeal said. “The ruling … requires zero proof to overcome or to weigh against the newsgatherer’s First Amendment privilege of nondisclosure. Rather, the court of appeals flatly rules that no such privilege exists in a civil defamation case.

“It is not complicated. This Court [U.S. Supreme Court] explicitly and unequivocally has held that there is a newsgatherer’s First Amendment privilege of nondisclosure; the court of appeals straightforwardly ruled that there is no such privilege…” the appeal said.

“This Court, to protect the public interest in free-flowing access to news, at a heavy price to public figure-plaintiffs in civil defamation suits, has repeatedly ruled that the First Amendment makes it extraordinarily difficult for a public figure to obtain a judgment in such a civil defamation suit. All of the public policy this Court has so assiduously declared will go up in flames if what was … decided can occur without this Court intervening to reverse,” the appeal said.

In the Watergate case, the Post stories by Woodward and Bernstein revealed enough of Nixon’s antics so that on Aug. 9, 1974, he resigned, becoming the first president ever to leave office in that manner. Deep Throat, the secret source of insider information vital to the Post’s coverage, was secret for three decades, until a former pillar of the FBI named W. Mark Felt identified himself as Deep Throat in 2005.

He was the FBI’s second-ranking official during a period of the Nixon presidency and had the means and motive to help the newspaper uncover the spies, tricks, cover-ups and surveillance that led to Nixon’s resignation and prison terms for some of the president’s highest-ranking aides.

In the California case, Tennessee and 23 other states, Puerto Rico, and three dozen news organizations – including the New York Times, Los Angeles Times, Washington Post, NBC, CBS, ABC and NPR – are asking the appellate court to reverse the lower court decision requiring the Chronicle and writers to divulge who leaked them transcripts of grand jury testimony about the investigation of steroids supplied to Major League Baseball players.

The brief originated with New York’s attorney general, and the others signed on to the argument submitted to the 9th U.S. Circuit Court of Appeals in San Francisco.

The states say that state laws protecting reporters’ confidential sources are meaningless if a federal standard is lower. The brief suggests that before a federal court could force reporters to give up their sources, it must show that “the public interest in disclosure outweighs the public interest in confidentiality.”

WND, the two reporters and others were sued over a series of 18 investigative stories the free-lance reporters completed during the 2000 presidential campaign, and which then were posted on the WND website.

Hays also completed a 20-part series on drug trafficking in west Tennessee that primarily was responsible for the Courier of Savannah winning the 2000 Public Service Award from the Tennessee Press Association. He has published two novels, numerous magazine and newspaper articles on Tennessee political corruption, and a history of the Savannah area, the last through a grant from the Tennessee Historical Commission.

Thompson, who started his journalism career in print media, soon moved to television, where he captured an Emmy for his investigative reporting as well as the Headliner’s Award. He worked for a number of years as Mike Wallace’s producer at CBS’ 60 Minutes and was a founding producer of ABC’s 20/20. His investigation into the explosion of “gun turret two” on the U.S.S. Iowa in 1989 resulted in a book, published by W.W. Norton in 1999 and a movie starring James Caan.

Also named in the suit were five John Does and five Jane Does, as well as the Center for Public Integrity in Washington, D.C.; WSIB-AM in Selmer, Tenn.; the Decatur County Chronicle; WTVF-TV in Nashville; the Savannah Snitch; the Savannah Journal; Larry Brinton, a commentator for WTVF; H.J. Maxedon of Selmer; and Rebecca Hagelin, at the time WND’s vice president for communication.

Help WND fight landmark 1st Amendment legal battle

WorldNetDaily’s only recourse in this lawsuit is to fight every step of the way in its pursuit of truth. If you would like to help offset the enormous legal costs involved in defending against this attack on the First Amendment, you may make a donation online to WND’s Legal Defense Fund, or by calling WND toll-free at 1-800-4WNDCOM (1-800-496-3266), or by mailing a check – made payable to WorldNetDaily Legal Defense Fund – to: